Code of Best Practices in Fair Use for Academic and Research Libraries
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CODE OF BEST PRACTICES IN FAIR USE FOR ACADEMIC AND RESEARCH LIBRARIES 6 activities, the policies behind them may help to guide the interpretation of fair use as it applies to schools and libraries.4 As legislative history makes clear, these provisions were designed to complement rather than to supplant fair use, which has been part of copyright law for 170 years and remains the most fundamental of such structural features.5 Section 107 of the Act, which codiﬁed the fair use doctrine in 1976, speciﬁcally includes references in its preamble to a number of activities associated with the academic and research library mission, including “criticism, comment…, teaching…, scholarship, [and] research.” Fair use is a user’s right. In fact, the Supreme Court has pointed out that it is fair use that keeps copyright from violating the First Amendment; without fair use and related exceptions, copyright would create an unconstitutional constraint on free expression. Creators, scholars, and other users face new challenges as copyright protects more works for longer periods, with increasingly draconian punishments and narrow, outdated speciﬁc exceptions. As a result, fair use is more important today than ever before. Because copyright law does not specify exactly how to apply fair use, the fair use doctrine has a useful flexibility that allows the law to adjust to evolving circumstances and works to the advantage of society as a whole. Needs and practices differ with the ﬁeld, with technology, and with time. Rather than following a prescriptive formula, lawyers and judges decide whether a particular use of copyrighted material is “fair” according to an “equitable rule of reason.” In effect, this amounts to taking all the facts and circumstances into account to decide whether an unlicensed use of copyrighted material generates social or cultural beneﬁts that are greater than the costs it imposes on the copyright owner. 4. See Jonathan Band, “The Gravitational Pull of Speciﬁc Exceptions on Fair Use” (Sept. 1, 2011), unpublished manuscript, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1966593. 5. See, e.g., 17 U.S.C. § 108(f)(4), (“[Nothing in this section] in any way affects the right of fair use as provided by section 107…”); U.S. Copyright Ofﬁce, The Section 108 Study Group Report 22 (2008), (“[S]ection 108 was not intended to affect fair use. Certain preservation activities fall within the scope of fair use, regardless of whether they would be permitted by section 108”); memorandum from Randolph D. Moss, acting assistant attorney general to the general counsel, Department of Commerce (April 30, 1999), (“Section 108 of the 1976 Act does not narrow the protection for fair use provided by the common law doctrine codiﬁed in section 107”), http://www.justice.gov/olc/pincusﬁnal430.htm.